. A-00958-13T2 OF CHILD PROTECTION AND PERMANENCY v. L.M.T. and A.S.B and E.V.B IN THE MATTER OF THE GUARDIANSHIP OF E.B., S.B. and I.B Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-00958-13T2

A-1522-13T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.M.T. and A.S.B.,

Defendants-Appellants,

and

E.V.B.,

Defendant.

______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

E.B., S.B. and I.B.,

Minors.

______________________________________

SubmittedMay 27, 2014 Decided June13, 2014

 

Before Judges Yannotti, Ashrafi and Manahan.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-44-13.

 

Joseph E. Krakora, Public Defender, attorney for appellant L.M.T. (Howard B. Tat, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant A.S.B. (Eric R. Foley, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay C. Wight, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.B., S.B. and I.B. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

L.M.T. and A.S.B. appeal from a judgment entered by the Family Part on October 8, 2013, which terminated L.M.T.'s parental rights to minors E.B., S.B. and I.B., and terminated A.S.B.'s parental rights to S.B. and I.B. We entered an order on December 10, 2013, consolidating the appeals. For the reasons that follow, we affirm.

I.

We briefly summarize the salient facts. L.M.T. gave birth to E.B. in June 2009. E.V.B. is E.B.'s father. L.M.T. tested positive for marijuana at the time of E.B.'s birth. She also did not have prenatal care. L.M.T. tested positive for marijuana later that month, and again in July 2009. L.M.T. thereafter participated in substance abuse treatment, but relapsed in December 2009 and lost her housing. E.B. was placed in the care of L.M.T.'s cousin, S.P.

In January 2010, L.M.T. tested positive for marijuana. She was evaluated and referred for services. She again tested positive for marijuana in March and April 2010. In May 2010, L.M.T. was discharged from a substance abuse program.

On May 25, 2010, the Division of Child Protection and Permanency (Division)1 filed a complaint in the Family Part, Hudson County, and was granted care, custody and supervision of the child. E.B. remained in the care of S.P. The protective services litigation was dismissed in September 2010. In August 2011, the Division was informed that S.P. was having financial difficulties. E.B. was placed with foster parents, with whom she has remained.

L.M.T. gave birth to S.B. in August 2011. A.S.B. is S.B.'s father. S.B. did not test positive for illegal drugs at the time of his birth. However, L.M.T. had not had prenatal care or attended a substance abuse program since April 2011, when she tested positive for marijuana. The Division removed S.B. from L.M.T.'s care on an emergency basis. The Family Part granted the Division's application for custody, care and supervision of S.B. He was placed with E.B.'s foster parents, where he has remained.

In September 2011, L.M.T. and A.S.B. both tested positive for marijuana and they were referred for substance abuse treatment. The trial court conducted a fact-finding hearing in December 2011, and found that L.M.T. and A.S.B. had abused or neglected the children. The court's order of December 2, 2011, states that this finding was based on L.M.T.'s and A.S.B.'s use of marijuana for a period of at least two years, their use of marijuana prior to and after the birth of the children, and their failure to address such substance abuse, which "placed the children at risk of harm." E.B. and S.B. remained under the Division's custody, care and supervision. The case was transferred to Essex County.

In June 2012, L.M.T. was four months pregnant, and she and A.S.B. were homeless. On June 13, 2012, L.M.T. again tested positive for marijuana. The court ordered L.M.T. and A.S.B. to obtain stable housing. The following month, L.M.T. began attending a substance abuse program. A.S.B. apparently was incarcerated at the time.

In August 2012, the court approved the Division's plan for termination of parental rights followed by adoption. On September 12, 2012, the Division filed its guardianship complaint seeking to terminate L.M.T.'s and E.V.B.'s parental rights to E.B., and L.M.T.'s and A.S.B.'s parental rights to S.B.

In November 2012, L.M.T. gave birth to I.B. A.S.B. is I.B.'s father. On November 15, 2012, the court placed I.B. in the Division's custody, care and supervision. On that date, L.M.T. and A.S.B. reported to the court that they were homeless and staying with friends. L.M.T. tested positive for oxycodone, but produced a bottle, indicating that the drug had been prescribed for her use. The Division did not investigate further. A.S.B. refused to submit to a drug screen.

The court conducted a case management review hearing in January 2013. L.M.T. and A.S.B. refused to be tested for drug use; however, A.S.B.'s attorney acknowledged that A.S.B. would have tested positive. The court later held a fact-finding hearing and entered an order dated February 27, 2013, finding that L.M.T. and A.S.B. had abused or neglected I.B. by failing to make an appropriate plan for his care. The order noted that neither L.M.T. nor A.S.B. had obtained appropriate housing or completed Division-recommended services.

The court entered another order dated February 27, 2013, which relieved the Division of its obligation to make reasonable efforts to reunify I.B. with A.S.B., unless A.S.B. specifically asked for services and indicated that he was willing to comply with such services. Although the Division had planned to reunify I.B. with L.M.T. and A.S.B., in June 2013, the plan was changed to termination of their parental rights followed by adoption.

On August 2, 2013, the Division amended its guardianship complaint and included a claim for termination of L.M.T.'s and A.S.B.'s parental rights to I.B. On August 6, 2013, E.V.B. entered an identified surrender of his parental rights to E.B. The court conducted a trial in the matter in October 2013, during which the Division presented testimony from Dr. Peter DeNigris, a licensed psychologist, and caseworker Cleo Crossley. A.S.B. was the only defense witness.

On October 8, 2013, the court placed its decision on the record, finding that the Division had established all four prongs of the statutory test for termination of parental rights in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The court memorialized its findings in an order entered on that same date. Thereafter, L.M.T. and A.S.B. filed notices of appeal.

II.

We begin our consideration of the appeals with a review of the principles that govern the termination of an individual's parental rights. It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. Moreover, "[t]he balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid.

That standard requires that an individual's parental rights not be terminated unless the Division establishes each of the following criteria:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

 

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

 

[N.J.S.A. 30:4C-15.1(a).]

 

These criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. Furthermore, the Division must establish each of the criteria with clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).

Here, L.M.T. and A.S.B. argue that the judge erred by finding that the Division met its evidentiary burden for the termination of their respective parental rights. In considering these contentions, we note that the scope of our review of a trial court's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Ibid. (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

The trial court's findings of fact "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

III.

We turn first to L.M.T.'s appeal. L.M.T. does not dispute that the Division established the first prong of the statutory test, that the children's safety health and development have been harmed by their relationship with her. N.J.S.A. 30:4C-15.1(a)(1).

L.M.T. argues, however, that the trial court erred by finding that the Division satisfied the second prong of the test, which requires a showing that the parent is unable or unwilling to eliminate the harm to the child. N.J.S.A. 30:4C-15.1(a)(2). L.M.T. contends the court erroneously found that she had not made any progress during the litigation and that she was unable to correct the harm to the children arising from her relationship with them.

L.M.T. maintains that the judge ignored the progress that she has made in addressing her substance abuse issues since E.B. was originally removed from her care. She claims that she was on the "path to recovery" and "making progress" in correcting the harm that led to the children's placement.

We are convinced, however, that the evidence presented by the Division clearly and convincingly established that L.M.T. is unable or unwilling to eliminate the harm to the children resulting from her relationship with them. The evidence showed that L.M.T. has a long-standing history of substance abuse. During the course of the litigation, L.M.T. repeatedly tested positive for illegal drug use. In December 2009, L.M.T. became homeless and did not thereafter secure stable housing.

Moreover, in 2011, L.M.T. was in a program called Strong Mothers, which provides substance abuse treatment and parenting classes. She did not complete the program, although L.M.T. later made an effort to re-enroll. Crossley described L.M.T.'s participation in services as minimal. In its June 27, 2013 permanency order, the court noted that L.M.T. had not appeared for or cancelled five substance abuse evaluations.

Furthermore, Dr. DeNigris testified that L.M.T. did not accept responsibility for the children's continued placement in foster care. The doctor noted that L.M.T. did not have a specific plan for reunification with the children and she did not have stable housing. He said L.M.T. lacked insight into her behavior, which was at times hostile and antagonistic.

Dr. DeNigris noted that L.M.T. conceded she had been arrested and incarcerated about thirty times for drug-related offenses and prostitution. The doctor opined that, based on his testing and interview with L.M.T., she was not a fit caretaker for the children and she would not be able to parent the children for the foreseeable future.

Moreover, the second prong of the statutory test requires the Division to show that a delay in permanent placement will add to the harm. Ibid. There is sufficient credible evidence for the court's finding that L.M.T. would not be "close to being stable" or capable of providing any type of permanency for the children in the foreseeable future.

Next, L.M.T. argues that the trial court erred by finding that the Division made reasonable efforts to reunite her with the children, as required by the third prong of the test. N.J.S.A. 30:4C-15.1(a)(3). She claims that the Division failed to provide her with adequate visitation to enable her to bond with the children. Again, we disagree.

Crossley testified that L.M.T. and A.S.B. were afforded weekly visitation. Initially, the visits were for two hours, but in early 2013, the visits were changed to one and one-half hours. Crossley said L.M.T. and A.S.B. were "loving" with the children, but during the initial visits, they acted inappropriately and spent time arguing with Crossley and another caseworker.

Furthermore, Dr. DeNigris testified that one hour per week for visitation was sufficient to establish a bond between a parent and a child, depending upon the manner in which the parent uses that time. Thus, the evidence fully supports the trial court's finding that the Division made reasonable efforts toward reunification, including visitation, thereby establishing prong three of the statutory criteria.

L.M.T. further argues that the trial court erroneously found that the Division established the fourth prong of the best interests standard because the Division failed to show that termination of her parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). She contends that the Division never established that any harm would come to the children if the current status quo is maintained. We cannot agree.

As we noted previously, Dr. DeNigris testified that L.M.T. was not capable of parenting the children and would not be able to do so in the foreseeable future. He also testified that the children have stronger bonds with their foster parents than with L.M.T. Dr. DeNigris said the children would not be harmed if their relationship with their birth parents is severed.

He stated, however, that the children would suffer harm if they are removed from their foster parents and the children's birth parents could not alleviate that harm. The record therefore supports the court's finding that the Division established by clear and convincing evidence that termination of L.M.T.'s parental rights would not do more harm than good.

In sum, we conclude that the that the trial court correctly determined that the Division had established all four of the criteria in N.J.S.A. 30:4C-15.1(a) for termination of L.M.T.'s parental rights to E.B., S.B. and I.B.

IV.

In his appeal, A.S.B. argues that the Division failed to establish that S.B. and I.B. were harmed by their relationship with him. A.S.B. contends that the court made an erroneous, general finding of harm based on substance abuse "issues" and "homelessness." He contends that the court erred by failing to tailor its finding to each parent.

A.S.B. asserts that he only tested positive for marijuana and the only positive drug tests were those taken shortly after S.B. was born. However, in December 2011, following a fact-finding hearing, the trial court found that A.S.B.'s and L.M.T.'s use of marijuana prior to and after the birth of S.B. constituted abuse or neglect.

Furthermore, the record shows that A.S.B. refused to submit to drug screens since September 2012, when the Division filed its initial guardianship complaint. At the trial, A.S.B. acknowledged that he refused to submit to drug screenings on five different occasions. He conceded that if tested, the results might have been positive. At the court proceeding in January 2013, after A.S.B. refused to be tested, his attorney said A.S.B. would have tested positive if screened.

A.S.B. also argues that his homelessness must be considered in light of the entire record. He says he obtained employment twice during the course of the litigation. He claims that he lost his first job because a Division caseworker came to his place of employment to speak with him. He says this deprived him of an opportunity to remedy the housing situation. He also says that homelessness is an economic issue and should not serve as a basis for finding that he harmed the children. Again, we disagree.

The trial court properly determined that A.S.B.'s children were harmed in part by his failure to provide them with a safe and stable home. Moreover, at the trial, A.S.B. testified that he lost his apartment in 2010. He was still homeless at the time of trial in 2013. He said he was living with a friend and sleeping on the floor. He failed to provide a credible explanation for his extended failure to maintain stable housing.

In addition, A.S.B. contends that the Division did not make reasonable efforts to eliminate the causes for the removal of the children. He says that the Division did not provide sufficient time for visitation. However, as we stated previously in addressing L.M.T.'s identical argument, the record shows that the Division provided ample time for visitation. We also note that in February 2013, the court relieved the Division of making any efforts to reunify I.B. with A.S.B., unless he specifically requested services and was willing to comply with those services.

A.S.B. also contends that the trial court erroneously found that the Division established that termination of his parental rights would not do more harm than good, as required by N.J.S.A. 304C-15.1(a)(4). He contends that the trial court erred by relying upon Dr. DeNigris's testimony. He says that Dr. DeNigris did not state that the children had a strong bond with the foster parents.

However, Dr. DeNigris testified that S.B. was in the process of forming a bond with his foster parents "because of his age." He noted that S.B. was "very young" at the time of the bonding evaluation. Dr. DeNigris did not perform a bonding evaluation of I.B. and his foster parents because he was too young for such an evaluation. Dr. DeNigris stated that he did not observe any attachment or bonding between the children and their birth parents.

Moreover, Dr. DeNigris indicated that the children appeared to be "very comfortable" with their foster parents. He said the foster parents were attuned to the children's needs and responded appropriately to them. The children also approached the foster parents to have their needs met. The foster parents were playful and provided a lot of affection to the children. The doctor noted that S.B. cried when he was separated from his foster parents, and he smiled when they returned.

Thus, Dr. DeNigris had a sufficient basis for concluding that the children had stronger bonds with their foster parents than with their birth parents. The bonding evaluations also supported his conclusion that the children would not suffer any harm if the birth parents' parental rights were terminated, whereas the children would be harmed if separated from their foster parents. Therefore, the court did not err in relying on Dr. DeNigris's testimony.

A.S.B. further argues that the matter should be remanded to the trial court because the Division failed to establish that it provided the foster parents with correct information as to the differences between adoption and kinship legal guardianship (KLG). Again, we disagree.

KLG permits a caretaker to become a legal guardian of a child when the parent is incapable or unable to care for the child. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004). When a KLG is established, parental rights are not terminated. Ibid. However, KLG is not a viable option when adoption is feasible or likely. N.J.S.A. 3B:12A-6(d)(3)(b).

Here, Crossley testified that she spoke with the foster parents several times regarding their decision to adopt the children. She also said that she explained to the foster parents the differences between KLG and adoption. She testified that the foster parents were committed to adoption.

In addition, the foster parents provided the trial court with a letter stating that they intended to adopt the children. They also told Dr. DeNigris they did not want to keep in close contact with the children's biological parents because L.M.T. had threatened them and they did not have a good relationship.

Therefore, the record establishes that the Division explained KLG to the foster parents, and they are committed to adoption of the children. Because adoption is feasible and likely, KLG is not an option in this case. Thus, a remand is not required.

Finally, A.S.B. argues that the trial court failed to make proper findings of fact, as required by Rule 1:7-4. The argument is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Accordingly, we conclude that the trial court correctly determined that the Division had established with clear and convincing evidence all four of the criteria in N.J.S.A. 304C-15.1(a) for termination of A.S.B.'s parental rights to S.B. and I.B.

Affirmed in A-0958-13 and A-1522-13.

 

 

 

 

1 The Division was previously known as the Division of Youth and Family Services. L. 2012, c. 16.